State v. HallState v. Hall
- Reporters:
- ,
- Before:
- Alarid
OPINION
ALARID, Judge.Defendant pled guilty to driving while under the influence of intoxicating liquor (DWI). The judgment appealed from was filed on September 28, 1994. The notice of appeal was timely filed on October 4, 1994, and the docketing statement was timely filed on October 6, 1994. Defendant appeals the enhancement of his sentence pursuant to his conviction for DWI. The calendar notice proposed summary affirmance. Defendant has responded with a timely memorandum in opposition which was filed December 5 pursuant to an extension of time granted by this Court. We are not persuaded by Defendant’s memorandum and therefore affirm.
FACTS
The facts giving rise to the issue raised on appeal are uncontested. Defendant was charged with DWI under
-DISCUSSION
Defendant contends that the words “under this section” without more, limit the State’s use of prior convictions; he can only be punished under Subsection E of the amended DWI statute, because he has only one conviction “under this section.” Defendant cites State v. Russell, 113 N.M. 121, 823 P.2d 921 (Ct.App.1991), to support his interpretation of “under this section.”
In Russell, this Court discussed an interpretation of “under this section” in the context of DWI law. Id. at 123-26, 823 P.2d at 923-26. Russell involved three previous DWI convictions under a municipal ordinance and a fourth conviction under
The ease at present is different. We note that the legislature enacted a provision in the new DWI statute specifically stating that DWI convictions under a municipal ordinance can be used to determine whether a DWI conviction is a second or subsequent conviction under the new DWI statute (emphasis added). See
Defendant also argues that the enhancement of his sentence under the new DWI statute constitutes an ex post facto application of the amendments to the DWI statute and is therefore a denial of due process. “An ex post facto law has been defined ... as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’” State v. Alderette, 111 N.M. 297, 300, 804 P.2d 1116, 1119 (Ct.App.1990) (quoting Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964) (quoting Colder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798))).
Statutes imposing additional punishments upon persons previously convicted of crimes do not punish habitual criminals for their earlier offenses, but merely increase the penalty for repetition of further acts of criminal conduct. State v. Oglesby, 96 N.M. 352, 353, 630 P.2d 304, 305 (Ct.App.1981). A sentence that is statutorily enhanced because of a predicate conviction, even though occurring before the enhancement of the penalty provisions, does not violate the constitutional prohibitions against ex post facto laws. United States v. Ahumada-Avalos, 875 F.2d 681, 684 (9th Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 118, 107 L.Ed.2d 79 (1989).
Defendant relies on Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), and Bouie. In Dobbert, the United States Supreme Court examined whether a new criminal statute violated constitutional prohibitions against ex post facto laws. Dobbert, 432 U.S. at 298, 97 S.Ct. at 2300. The Court held that “the existence of the statute served as an ‘operative fact’ to warn the petitioner of the penalty which Florida would seek to impose on him if he were convicted” and was “in sufficient compliance with the ex post facto provision of the United States Constitution.” Id. In Bouie, the United States Supreme Court examined whether the construction of a criminal statute violated defendants’ due process rights. Bouie, 378 U.S. at 349, 84 S.Ct. at 1700. The Court, in holding that the construction of the criminal statute violated the Due Process Clause, stated that the criminal statute provided “no fair warning of the criminal prohibition under which [the defendants] now stand convicted.” Id. at 361, 84 S.Ct. at 1706.
In Alderette, this Court held that due process prevented retroactive application of the changed construction to a statute concerning escapes from jail. Id., Ill N.M. at 298, 804 P.2d at 1117. The change involved construing a statute so as to encompass escapes by persons held on criminal charges as well as those persons held on civil contempt charges. Id.
In the present case there was no such changed construction of the DWI statute. Under the amendments to the DWI statute, if a person is convicted of a fourth offense, that person is guilty of a fourth degree felony punishable by a jail term of not less than six months which shall not be suspended or deferred or taken under advisement. See
Since Defendant’s actions occurred six months after the new DWI statute was enacted, Defendant had “fair warning” that if he violated the new DWI statute his previous convictions for DWI could be used to enhance his sentence. See Dobbert, 432 U.S. at 298, 97 S.Ct. at 2300-01; cf. Bouie, 378 U.S. at 361, 84 S.Ct. at 1706-07. Therefore, Defendant was not denied due process. Cf. Alderette, 111 N.M. at 300, 804 P.2d at 1119 (Due Process Clause prevents retroactive applications of changed construction of statute).
Defendant attempts to argue that he must be punished as a “first offender” under Subsection E of the new DWI statute, because he has only one conviction “under this section.” See
We hold that the trial court’s enhancement of Defendant’s sentence neither constituted an ex post facto application of the new DWI statute nor a denial of Defendant’s due process rights. We therefore affirm the enhancement of Defendant’s sentence, and the judgment and sentence entered below.
IT IS SO ORDERED.
DONNELLY and BLACK, JJ., concur.